A man who was physically and sexually abused by monks whilst staying in a residential school 40 years ago has been awarded more than £300,000 in damages by the All-Scotland Personal Injury Sheriff Court in Edinburgh. He had previously rejected a lower offer. The decision offers some useful guidance for quantification of these difficult claims.

Nature and extent of the abuse

The claimant alleged he had been repeatedly raped, beaten and sexually assaulted by Brother Ryan, the headmaster of the residence. He alleged that he had also been repeatedly sexually assaulted by Brother Farrell, who is in prison after being found guilty of sexually assaulting the claimant. The claimant also alleged he had been physically (non-sexually) abused by Mr Timothy Foxhall, a teacher employed by the defender's congregation.

The allegations of abuse for which Brother Farrell had been convicted were not challenged by the defender.However the defender argued that the allegations of rape made against Brother Ryan had not been proved. Its arguments focused on the claimant's failure to make the allegation of rape when first interviewed by police in 2013, the fact that the claimant's memory would not have improved since then and that Brother Ryan, who was still presumed innocent under the law; had died in 2013 and so could not refute the allegations.

However, Sheriff McGowan, whilst acknowledging the defender's arguments, had little difficulty finding the claimant an honest witness who gave a genuine description of the abuse. It was not surprising that certain details had been forgotten and evidence was led of the claimant's reluctance to speak about his experiences and become involved in the criminal investigation. As such, Sheriff McGowan accepted the claimant's evidence in relation to the rape along with his evidence of the alleged physical abuse and found that the claimant had been raped by Brother Ryan on a number of occasions.

Level of damages

In the first place the defender invited the court to reject the claimant's expert's diagnosis of post-traumatic stress disorder (PTSD). Although Sheriff McGowan acknowledged that the expert's evidence, in certain respects, was not initially as clear as it could have been he ultimately found that the claimant's PTSD was directly attributable to the abuse.

In determining the correct figure for solatium (pain and suffering), the court considered the factors set out in the case of J v Fife Council 2007 SLT 85 namely;

  • The nature and severity of the abuse;
  • The character of the abuse (sexual, non-sexual but violent, mental/emotional); and
  • The frequency of the abuse.

Sheriff McGowan found the claimant's experience justified an award at the top end of the scale, awarding £120,000 plus interest.

The assessment of the claim for loss of earnings and disadvantage on the labour market (future earning capacity) was complicated by the nature of the claimant's home life prior to his residence at the school. The claimant had been brought up by his mother who was an alcoholic and had mental health issues. On occasion she was violent towards him and during his childhood he had been in and out of foster care which significantly disrupted his education.

Sheriff McGowan found that the claimant's vocational expert took account of matters not referred to in the evidence heard at trial. This fatally undermined the expert's conclusions regarding the qualifications the claimant might otherwise have obtained. On the other hand, the defender's expert took a more cautious approach given the number of factors identified which might have impacted on the claimant had he not been abused at the school. Sheriff McGowan, preferring the evidence of the defender's expert; considered the claimant's work history in phases and ultimately awarded £45,000 for past wage loss and £20,000 for future disadvantage on the labour market.

Impact on future claims?

Despite the introduction of the Limitation (Childhood Abuse) (Scotland) Act in 2017 which extended the time limits for these claims there have been relatively few reported decisions of damages awarded for historic abuse and this remains a developing area of law. However it is anticipated that once the qualified one way cost shifting regime (QOCS) introduced under the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 comes into force, there may be an increase in the litigation of these claims That is because, in most cases QOCS will remove the requirement for unsuccessful claimants to pay the defender's legal costs. This judgement therefore provides valuable guidance on the likely valuation of these claims.


Katy Angus